Vizione Holdings Berhad v General Enviromental Solution Sdn Bhd (WA-22NCC-74-02/2022)

GENERAL ENVIRONMENTAL …DEFENDANTS SOLUTION SDN BHD (Company No.: 200501003509 (680555-U))

JEPAK HOLDINGS SDN BHD (Company No.: 198501006421 (138865-H)) AND SAIDI BIN ABANG SAMSUDIN …THIRD PARTY (IC No.: 590503-13-5445) Judgment [Trial - Suing on a Guarantee]

This is a suit by the 1st defendant against the Third Party for RM 3 million based on a Guarantee. The trial was heard in one day on 30-10-2025. Oral submissions by counsel were held before me on 04-02-2026 and 31-03-2026.

These are my Grounds of Judgment. Background facts

The plaintiff Vizione Holdings Berhad is a company incorporated under Malaysian law. At all material times, the plaintiff is an investment holdings company whose shares are listed on BURSA Malaysia.

The 1st defendant General Environmental Solution Sdn Bhd is a company incorporated under Malaysian law. The 1st defendant are consultants and involved in the business of contracting of industrial waste system, solar photovoltaic system and off-grid standalone photovoltaic system.

The 2nd defendant Jepak Holdings Sdn Bhd is a company incorporated under Malaysian law and involved in civil, electrical, mechanical contract works, design and construction, project management, supply labour, vehicle hiring and workshop.

The Third Party Saidi Bin Abang Samsudin is a Malaysian citizen and at all material times a director of the 2nd defendant Jepak Holdings Sdn Bhd.

The 2nd defendant Jepak Holdings Sdn Bhd was awarded a contract by the Malaysian Ministry of Education to build an “Integrated Project Hybrid Solar Photovoltaic (PV) System and Genset/Diesel Operation and Maintenance for 369 Schools in rural Sarawak” for a sum of RM 1.325 billion. [“Solar Project”] Heads of Agreement between 1st defendant and 2nd defendant

The 2nd defendant Jepak Holdings Sdn Bhd proceeded to enter into a Heads of Agreement with the 1st defendant General Environmental Solution Sdn Bhd dated 29-08-2018. [“HOA 1”] [See B3 pages 44 - 54]. Another Heads of Agreement between the plaintiff, 1st defendant and 2nd defendant

I should point out that confusingly there is another Heads of Agreement also dated 29-08-2018 but this time there is an additional party i.e. the plaintiff besides the 1st and 2nd defendants. [“HOA 2” see B1 pages 8 - 27].

Counsel for the Third Party in his written submission refers to this HOA 2 whereas counsel for the 1st defendant refers to HOA 1. PW1 refers to the HOA 2 in his witness statement and relies on it. [See Q and A 4]

Nothing really turns on this as the suit before me involves the enforcement of a guarantee which both HOAs 1 and 2 state Jepak agreed to provide to the 1st defendant General Environmental Solution Sdn Bhd from its director, the Third Party. [See Clauses

3.1 and 3.3 of HOA 1, bundle B3, page 49 and HOA 2 B 1 page 13 Clause 3.4].

In the HOA 1 and HOA 2, the 2nd defendant Jepak Holdings Sdn Bhd agreed to appoint the plaintiff Vizione Holdings Berhad or its nominee as the sub-contractor to carry out the works. In turn, the plaintiff Vizione Holdings Berhad agreed to appoint the 1st defendant General Environmental Solution Sdn Bhd as its sub-contractor to carry out the works. [See Clause 2.1 of HOA 1, bundle B3, page 48 and HOA 2 B 1 page 12 Clause 2.1]. Payment of RM 3 million by the 1st defendant to the 2nd defendant

In consideration for getting the job, the 1st defendant General Environmental Solution Sdn Bhd had to pay the 2nd defendant Jepak Holdings Sdn Bhd a sum of RM 3 million as Earnest Deposit. [See Clauses 2.1 and 2.2 of the HOA 1, bundle B3, page 47].

This RM 3 million was paid by the 1st defendant General Environmental Solution Sdn Bhd to the 2nd defendant Jepak Holdings Sdn Bhd via a Maybank Cheque no. 074163 on 03-09-

[See bundle B3, page 112] [See also PW1’s testimony in Q and A 6].

To ensure the repayment of this RM 3 million Earnest Deposit in the event the HOA is terminated for any reasons whatsoever prior to the execution of a formal contract between Jepak and Vizione, and the execution of a formal contract between Vizione and the 1st defendant General Environmental Solution Sdn Bhd, Jepak agreed to provide to the 1st defendant General Environmental Solution Sdn Bhd a personal guarantee from its director, the Third Party. [See Clauses 3.1 and 3.3 of the HOA 1, bundle B3, page 49]. 1st defendant General Environmental Solution Sdn Bhd’s case

PW1 testifies that pursuant to clause 4.3 of the HOA 2, a formal contract shall be executed between the 2nd defendant and the plaintiff and between the plaintiff and the 1st defendant within 45 days from the date of the HOA 2. [See PW1’s testimony in Q and A 8].

PW1 further testifies that the plaintiff’s subsidiary and nominee, Wira Syukur (M) Sdn Bhd did not execute the Letter of Award to appoint the 1st defendant as its specialist sub-contractor in accordance with the terms of HOA 2. [See PW1’s testimony in Q and A 8].

PW1 also testifies that on 09-11-2018, the 2nd defendant’s solicitors, Messrs. Sandhu & Co gave notice to the 1st defendant’s solicitors that the HOA 2 is terminated and rescinded and that the 2nd defendant undertakes that the Earnest Deposit of RM3,000,000.00 shall be returned once its account is “unfrozen” by the authorities. [See PW1’s testimony in Q and A 9].

The 2nd defendant failed to repay the Earnest Deposit of RM3 million to the 1st defendant. [See PW1’s testimony in Q and A 1]. The Third Party failed to repay the Earnest Deposit of RM3 million to the 1st defendant. [See PW1’s testimony in Q and A 11].

The Third Party testifies that he was one of the founders of the 2nd defendant Jepak Holdings Sdn Bhd and was its beneficial owner and Managing Director for a period of time. [See Enclosure 145 DW1’s testimony in Q and A 2].

The Third Party also testifies that at the time of the HOA 1 and guarantee signing in 2018, he was the beneficial owner of all the shares in the 2nd defendant Jepak Holdings Sdn Bhd and that his wife and daughter held shares in the company under his instruction and guidance. He was also the director of the company. [See Enclosure 145 DW1’s testimony in Q and A 5 and 8].

The Third Party admitted signing the Guarantee. [See Enclosure 145 DW1’s testimony in Q and A 5 and 13].

Balasubramaniam A/L Karpan (“PW1”) testified during the trial for the 1st defendant General Environmental Solution Sdn Bhd.

The Third Party testified himself.

As I see it, there is only one issue before me. The issue is “Whether the Third Party is liable to pay RM 3 million to the 1st defendant General Environmental Solution Sdn Bhd under the Guarantee”. Court’s analysis

In my view, this issue is answered in the affirmative in favour of the 1st defendant General Environmental Solution Sdn Bhd. My reasons are as follows.

Clause 1 of the Guarantee states as follows: - Guarantee and Indemnity In consideration of the GES agreeing to enter into an agreement and to furnish the Earnest Deposit of RM3,000,000.00 at the request of the Jepak, the Guarantor, as the director of Jepak hereby unconditionally and irrevocably guarantees that he shall pay the RM3,000,000.00 being the Earnest Deposit, in the event the sum is due and payable and Jepak does not pay AND indemnifies GES all sums due and payable under the Heads of Agreement as stipulated in clause 3.1 of the Heads of Agreement for any reason whatsoever. [Emphasis added]

DW1/the Third Party himself admitted in his Witness statement-It is clear that I would only be liable to pay this amount if two things happen, namely: -

The sum is due and payable; AND

(ii) Jepak does not pay AND indemnifies GES all sums due and payable under the HOA.

It is undisputed the RM 3 million is due and payable from Jepak to the 1st defendant General Environmental Solution Sdn Bhd and Jepak had failed to pay the said RM 3 million. It is also undisputed that the Third Party failed to pay the RM 3 million to the 1st defendant General Environmental Solution Sdn Bhd.

The evidence shows the following.

PW1 had testified that on 09-11-2018, the 2nd defendant’s solicitors, Messrs. Sandhu & Co gave notice to the 1st defendant’s Solicitors that the HOA 2 is terminated and rescinded and that the 2nd defendant undertakes that the Earnest Deposit of RM 3,000,000.00 shall be returned once its account is “unfrozen” by the authorities. [See PW1’s testimony in Q and A 9].

The 2nd defendant failed to repay the Earnest Deposit of RM3 million to the 1st defendant. [See PW1’s testimony in Q and A 1]. The Third Party failed to repay the Earnest Deposit of RM 3 million to the 1st defendant. [See PW1’s testimony in Q and A 11]. Third Party’s reasons for not paying

The Third Party contends he is not liable to pay as Jepak could not pay due to its bank accounts being frozen by “the Malaysian Anti-Corruption Commission (MACC). The freeze made it impossible to refund the money at that time”. [See Enclosure 145 DW1’s testimony in Q and A 20]. This is not a valid reason.

The Third Party also contends “My position is that the guarantee was conditional. GES did not first pursue the principal debtor (Jepak) as required. The sum was not due and owing from me. The obligation to repay rested with Jepak and its new owners”. [See Enclosure 145 DW1’s testimony in Q and A 29]. This is again not a valid reason.

This is because the Third Party had undertaken a personal obligation to pay the sum of RM 3 million to the 1st defendant General Environmental Solution Sdn Bhd pursuant to Clause 1 of the Guarantee in the event the 2nd defendant Jepak Holdings Sdn Bhd fails to do so.

An authority on point is Foster v Wheeler (1888) 38 Ch. D 130, CA, where Bowen LJ said at 134- If a person agrees to do what’s impossible in fact you have only to consider whether on the fair construction of the agreement he made himself liable to pay damages if he did not do it; but if a person binds himself to do what depends in the caprice of the third person he must suffer if he cannot get that third person to exercise his caprice in his favour. [Emphasis added]

For the reasons above, I allow the 1st defendant’s claim against the Third Party as set out in the Amended Statement of Claim dated 23-10-2025 [Enclosure 161] for RM 3 million as set out at paragraph 18[a] with interest at 5% p.a. from 16-05-2023 till payment and costs of RM 40,000 subject to allocatur. Dated: 08th April 2026 ………(signed)…………… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for 1st defendant: Mark Ho Hing Kheong and Lim Yee. Chellam Wong (Kuala Lumpur). Counsel for 3rd party: Harjit Singh Sandhu, Dev Chai Ming Shun and Anehajit Kaur (Pupil in Chamber). Harjit Sandhu, Wan & Associates (Kuala Lumpur). CASES REFERRED TO: 1) Foster v Wheeler (1888) 38 Ch. D 130, CA.